JOHANNESBURG — Advocate Mark Oppenheimer of the Johannesburg Bar is probably the most sensible and rational voice you’ll hear when it comes to those opposing a current process to change the Constitution to allow for expropriation of land without compensation in South Africa. After attending a recent summit where various interested parties came together to discuss their opposition to land EWC, Oppenheimer had an opportunity to chat to us at BizNews again about what can be done now to fight back against a recent move by Parliament to amend the Constitution. What makes this situation tricky is that there’s a lot of uncertainty around what the wording of an amendment would entail exactly. President Cyril Ramaphosa has previously tried to allay fears around threats to private property rights and suggested the changes might only entail a clarification of what exists currently in the Constitution. But by changing the Bill for Rights itself for the first time in our young democracy’s history, we are entering risky waters as Oppenheimer explains in this interview. – Gareth van Zyl
It’s great to welcome Advocate Mark Oppenheimer back on the BizNews podcast once again. Mark, thanks for chatting to us again.
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An absolute pleasure.
So when we spoke in March this year, we had a very interesting discussion on the land debate in SA and a lot has happened since then with Parliament adopting a recommendation to amend Section 25 of the Constitution. Firstly, what do you make of what’s happened there?
Well, we’ve gone through a long process. There were two kinds of public participation processes. The first was a roadshow where the Parliamentarians went out to different parts of the country to listen to views and the second was done in Parliament where parties were able to make oral submissions based on written submissions. And after that, a report was compiled. One of the things we know is that hundreds of thousands of submissions were sent in and some of them were removed on the basis that there were duplicates. But we know that of the ones that remained, 65% of them were against changing the Constitution.
The report, itself, ultimately makes a recommendation that the Constitution ought to be changed. The language that they use is ‘to make explicit that, which is already implicit.’ Now, we know that this is rather vague language. It either means that there will be no substantial change whatsoever because whatever is implicit in the Constitution will only be explicated. But I imagine this will be a battle-line and that you might have certain people who think all sorts of things are implicit and that they’ll want to allow for all land to be expropriated without compensation.
One of the other interesting features of that report is that it acknowledges that when people gave presentations they looked to Venezuela and Zimbabwe and pointed out that these kinds of approaches have been used in those countries to devastating effect. So, the report acknowledges that in Zimbabwe you have 90% unemployment and in Venezuela, for example, you have 837,000% inflation. In Venezuela, their currency is so thoroughly eradicated that it is better for you, as a consumer, to use the notes instead for toilet-paper because you get more bulk out of the notes. That’s how destroyed their economy is. You have Venezuelans fleeing their country in droves. So, the Parliamentarians acknowledge this and then recommended a change anyway. To my mind, that seems entirely irrational; a move for that report to be set aside could be done on that basis.
A big challenge with all of this like you’ve said is that it’s not really 100% clear yet what the exact wording of this amendment could be. We had President Cyril Ramaphosa earlier this year saying that they would simply change the Constitution to make it more clear under which terms expropriation could happen. But there seems to me like there’s a danger there that it could cross the line?
Yes, there is definitely a danger and, I think that it’s important that we see some language so that we can see what the Constitutional change would then look like. The amendment itself can’t allow for any expropriation to happen. You have to have an Expropriation Bill that allows that, and I gather that there are changes to the Expropriation Bill in the works, which will then authorise the government to do the expropriation without them compensating.
I also gather that while there isn’t an official document floating around, there’s some reporting of what may be in it. One of the things that’s said to be in there is that of expropriating land without compensation when it is purchased for speculative purposes. That seems incredibly dangerous to my mind because it’s very important in a free market that people are able to speculate. That is, people buy shares in the hope that they will go up – they are speculating. They hold money in their savings accounts because they take a particular view on cash – they’re speculating. You might buy a piece of land and hold it for a while because you’re not sure if you want to develop it into a shopping centre or a business park or residential zone – you’re speculating. There’s no reason why your speculation should be punished by the State. You’ll find that what will happen is no one will speculate, no one will buy any of that land, it will become worthless and that doesn’t do much good to anyone.
Also read: Straight talk on land: Advocate Mark Oppenheimer on what’s at stake with ELWC
There seems to be a lot of legal challenges that are going to be launched as well. We’ve already seen AfriForum launching an interdict, which wasn’t successful but there’s going to be more, no doubt. Even the Democratic Alliance has made noises about a possible legal challenge. Do you think that this whole land question is going to be mired in legal debates for years and, in fact, it might not ever happen just because of that?
Well, at a conference that I spoke at last week, which brought together a range of political parties that are opposed to change the Constitution and an array of other civil society organisations that also care about protecting the Constitution. I gave the following advice. I said, “It’s important that you fight this battle threefold. The first is in the press, the second is at the polls, and the third is in court.” What I mean by that is that it’s important that the public truly understands what danger we are in if our Constitution is changed. You must bear in mind that the Bill of Rights is the most sacred part of our Constitution and it has never been changed before.
The day that I spoke marked the fifth-year anniversary of Nelson Mandela’s death. This is the man who fought and died for our Bill of Rights and the idea that we would upend it is an absolute disgrace and disregard of the important work that he did. So, it’s important that this is indicated in the press and that people understand the true dangers that we face. The second is we know that Parliament adopted that report and about 69% of Members of Parliament adopted it. Now, in order to pass any change to the Bill of Rights you need a two-thirds majority. It’s important then that those parties that are opposed to the change, namely the DA, COPE, ACDP, Vryheids Front, and the IFP see this as an election issue and that they fight hard on it so that they’re able to push beyond that threshold, and so they can protect our Constitution.
The third is in the courts. Now, there are a couple of different challenges that could happen there. The one relates to the process. So, AfriForum has, as you’ve mentioned, launched an interdict but they also launched a review challenge to the report. One of their concerns is that more than 100,000 of the written submissions were removed and that Parliament had outsourced its obligation to read those written submissions to another entity, which seems like it didn’t really have a proper mandate either. There are those procedural concerns and that might be a reason to set aside the entire process. The DA will apparently also be launching some sort of similar challenge and, as I mentioned, the report is irrational on its own terms. These are the process challenges.
The second kind of challenges would happen after we see some language — that’s once there is a Bill. Now, an argument that the Bill may be un-Constitutional would be as follows – we know that you need a certain majority threshold to pass the legislation that amends the Bill of Rights and this must be two-thirds. The argument is that’s not, in itself, sufficient. That is, Section 36 (The Limitations Clause) says, “Any law that seeks to limit or rewrite the Bill of Rights must be justifiable in a democracy that is founded on the values of freedom, dignity, and equality.” That’s down in the Rationality Test, which includes things like less restricted means. It may be that Parliament gets the numbers, and tries to amend the Constitution by allowing for the expropriation of land without compensation, but that that is not justifiable.
We know, for example, in international law about the correct standard when a State expropriates land is for the State to pay adequate compensation. At the moment, our Constitution says, “You must pay just and equitable compensation.” If that is removed it would be a breach of international law and not justifiable in terms of our own Constitution. We also know that there are less restricted means. For example, if the purpose of this change is to enhance land reform, well that’s a noble purpose. Land reform is an important thing. You need more people having access to land. You need to address the wrongs of the past. In other words, if people’s land was stolen from them, then they should be awarded compensation, either in the form of money or land and you must also acknowledge that this has happened since 1995. That is, 1.8m individuals have received such compensation.
A less restrictive means is to just continue down that path, to keep the land reform process going. We know that the Government currently allocates 0.3% of its budget to land reform. That’s a rounding error and a large amount of that money is not actually spent on the beneficiaries, but it’s spent on Government employees doing the administration. So, a less restrictive means would be to allocate more money. To put that in perspective, for example, we know that Eskom is asking for a R100bn bailout from the public, but what we currently put towards land reform is a twentieth of that. If the issue of the day is meant to be land and we’re dedicating so little resources there, it seems like there’s a disjoint there.
So, if there’s no clear-cut guarantee that the current ANC Government and its alliances, in the likes of the EFF in this regard, will get what they want when it comes to changing the Constitution potentially, could it actually not happen at all or morph into something different?
Yes, the fight is on but they will get what they want if the public lays down and takes it, and I think now is the time to say that we’re not going to take it and that it’s important that we stand together as South Africans. What’s interesting, of course, is that when you poll South Africans you find that they want to protect our Constitution. They’re against expropriation without compensation. It really is a small group of radicals who’ve managed to create the false impression that everyone is in favour of this. When clearly, the data shows that’s not the case so, it is important that people stand up and fight. I don’t want us to put down any sense of complacency that ‘don’t worry, others are doing this so, you can do nothing.’
For those that are willing to engage in court battles, it’s important that the public funds them because court battles are expensive. Those political parties that want to protect our Constitution – people should be voting for them. Those that have the capacity to write and articulate these issues need to be doing that. They need to be publishing articles, they need to be appearing on podcasts, they need to saying out there that our Constitution is sacred and it deserves protection.
Just as a final question, Mark. How do you think that SA should best deal with the land question? What is the best solution here, from a legal framework perspective?
Well, I think we should continue down the path that we’ve been doing since 1995, which is to identify people who have had their land stolen from them. To provide restitution in those cases, and then I think also, to bear in mind the scale of the problem. So, as I’ve said, 1.8m individuals have had this resolved from the claims that were instituted between 1995 and 2014 – 97% of them have been resolved. So, we also know that when we poll people and we ask them what are the issues that matter to you: 40% say unemployment, 33% say service delivery and only 1% or 2% say, ‘land.’ From a policy perspective, we need a sense of how big the issue really is.
If you have a growing economy then that’s the kind of thing that’s going to make a big difference to people. In other words, they don’t really want a piece of rural land in the middle of nowhere. Let me tell you something interesting. I bumped into Andile Mngxitama from Black First Land First (BLF) recently, and I didn’t tell him much about who I am. I asked him a little bit about his position and he said to me, “Well, I grew up on a farm and I have absolutely no interest in going back to that farm.” So, this is someone who describes himself as an extremist who has pushed this ‘Black First Land First’ slogan ‘Land or Death’, and he, himself says, ‘I don’t want a piece of rural land.’ So, even if the most extreme proponents of this position know that getting stuck in the middle of the rural hinterland isn’t going to advance his life, then why the hell would anyone else want it?
Advocate Mark Oppenheimer, thank you so much for chatting to us about this very important issue once again.
An absolute pleasure.
